Fisher House and Other Temporary Lodging

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This final rule amends Department of Veterans Affairs (VA) regulations concerning Fisher Houses and other temporary lodging furnished by VA while a veteran is experiencing an episode of care at a VA health care facility. This final rule better describes the application process for this lodging and clarifies the distinctions between Fisher Houses and other temporary lodging provided by VA. This final rule generally reflects current VA policy and practice, and conforms to industry standards and expectations.

DATES:

This final rule is effective October 26, 2012.

FOR FURTHER INFORMATION CONTACT:

Deborah Amdur, Chief Consultant, Care Management and Social Work Service (10P4C), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6780. (This is not a toll free number.)

SUPPLEMENTARY INFORMATION:

This document adopts as a final rule without substantive change a proposed rule amending VA regulations. On March 16, 2012, VA published in the Federal Register (77 FR 15650) a proposal to amend its regulations concerning Fisher Houses and other temporary lodging furnished by VA while a veteran is experiencing an episode of care at a VA health care facility. Under 38 U.S.C. 1708, VA may furnish certain persons with temporary lodging in a Fisher House or other appropriate facility in connection with the examination, treatment, or care of a veteran. VA implements its authority under section 1708 in 38 CFR part 60. This authority to provide temporary lodging assists VA in providing appropriate treatment and care to veterans, because individuals receiving such treatment or care often respond better when they are accompanied by relatives, close friends, or caregivers.

Interested persons were invited to submit comments to the proposed rule on or before May 15, 2012, and we received no comments. Therefore, we make no changes based on comments. However, we make minor changes from the proposed rule in certain places in §§ 60.15 and 60.20, because the phrases “VA health care facility,” “VA medical center,” and “VA medical facility” were inadvertently used interchangeably with regards to: Where an application for temporary lodging may be obtained and where a completed application must be returned (§ 60.15(a)); the location of non-utilized beds in VA facilities that may serve as temporary lodging (§ 60.15(b)(3) and § 60.20(d)); the type of VA facility whose Director may determine whether hotels or motels are appropriate temporary lodging (§ 60.15(b)(4)); and where a denied application may be referred (§ 60.15(b)(7)). The intended usage was to refer only to a “VA health care facility” throughout the proposed rule, because this phrase broadly encompasses all VA facilities that are under the jurisdiction of the Veterans Health Administration and VA. By contrast, a “VA medical center” is a specific type of “VA health care facility” that distinctly provides, among other things, 24-hour inpatient care. VA has never limited, and it was not the intent of the proposed rule to limit criteria for temporary lodging, to only be considered in the context of a “VA medical center.”

Use of the broader phrase “VA health care facility” in this final rule reflects current and longstanding VA practice, and the proposed rule emphasized that it would generally reflect current VA practice. See 77 FR 15650, 15652-15653. Additionally, use of the phrase “VA health care facility” is consistent with 38 CFR part 60 prior to this revision, versus the phrase “VA medical facility.” The public therefore should be familiar with the phrase “VA health care facility,” as well as the intent of the proposed rule. Indeed, the fact that we received no comments on the inadvertent usage of the phrases “VA medical center” and “VA medical facility” in the proposed rule indicates that the public did not understand these phrases to propose new limitations regarding temporary lodging provided by VA.

Changes in this final rule to consistently use “VA health care facility” additionally do not broaden substantive criteria for temporary lodging from the proposed rule, because the proposed rule accurately used the phrase “VA health care facility” when describing substantive criteria to the public. Therefore, consistent use of the broader phrase “VA health care facility” in the final rule is not a substantive change from the proposed rule that requires an additional notice and comment period. For instance, the proposed rule clearly stated in § 60.2 that Fisher Houses and other temporary lodging may be located at or near a “VA health care facility.” See § 60.2 as proposed, and unchanged by this final rule, for the definitions of “Fisher House” and “Other temporary lodging,” which base location of temporary lodging at or near a “VA health care facility.” The substantive criteria in proposed § 60.2, related to where temporary lodging may be located, correctly stated that temporary lodging may be located at or near a VA health care setting that is broader than a “VA medical center.” Proposed § 60.15(a), however, incorrectly stated that applications for temporary lodging could be obtained from and returned to only “VA medical center[s].” Proposed § 60.15(a) intended to alert the public that applications for temporary lodging can be obtained from and returned to those places where temporary lodging may be located. Therefore, the final rule must accurately indicate that applications for temporary lodging may be obtained from and returned to a “VA health care facility,” and not only obtained from and returned to a “VA medical center.” See § 60.15(a) as revised by this rulemaking, versus § 60.15(a) as proposed. Accurately stating in the final rule that an application for temporary lodging may be obtained from and returned to a “VA health care facility” versus a “VA medical center” does not affect the location of temporary lodging, and does not affect any other substantive criteria such as eligibility for temporary lodging or access to temporary lodging. The change in this final rule in § 60.15(a) to use the phrase “VA health care facility,” therefore, is not substantive but rather merely standardizes the use of the correct and intended phrase, where otherwise multiple phrases will be confusing.

As another example, the proposed rule clearly stated in § 60.15(b)(5) that “the person responsible for coordinating the Fisher House and other temporary lodging program(s) at the VA health care facility of jurisdiction is responsible for making decisions to grant temporary lodging.” The substantive criteria in proposed § 60.15(b)(5), related to VA staff that decide whether to grant temporary lodging, correctly stated that such staff may work in a VA health care setting that is broader than a “VA medical center.” Proposed § 60.15(b)(7), however, incorrectly stated that if temporary lodging is denied, then the application would be referred to VA staff only “at the VA medical center of jurisdiction to determine if other arrangements can be made.” Proposed § 60.15(b)(7) intended to alert the public that if an application is denied, the application will be referred back to the setting where the original decision was made to determine if other lodging options are available. Therefore, the final rule must indicate that if an application for temporary lodging is denied, that VA will refer the application to a “VA health care facility of jurisdiction” to determine other options, and not limit the referral of the application to only a “VA medical center of jurisdiction.” See § 60.15(b)(7) as revised by this rulemaking, versus § 60.15(b)(7) as proposed. Accurately stating in the final rule that a denied application for temporary lodging is referred back to a “VA health care facility” versus a “VA medical center” does not affect the availability of other lodging options when temporary lodging is denied, and does not affect any other substantive criteria such as eligibility for temporary lodging or access to temporary lodging. The change in this final rule in § 60.15(b)(7) to use the phrase “VA health care facility,” therefore, is not substantive but rather merely standardizes the use of the correct and intended phrase, where otherwise multiple phrases will be confusing.

All other changes to use the broader phrase “VA health care facility” in §§ 60.15 and 60.20 are similarly not substantive, because they merely standardize the use of the correct and intended phrase, where otherwise multiple phrases will be confusing. We amend the language of the proposed rule to remove all mention of a “VA medical center” or “VA medical facility,” and replace those phrases with “VA health care facility” in this final rule.

Therefore, based on the rationale set forth in the proposed rule and above, VA is adopting the proposed rule as a final rule without substantive change.

Effect of Rulemaking

Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

Paperwork Reduction Act

Although this action contains provisions constituting collections of information at 38 CFR 60.15, under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or revised collections of information are associated with this final rule. The information collection requirements for § 60.15 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900-0630.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule does not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule directly affects only individuals and will not directly affect small entities. Any impact on small entities involved in the lodging industry would be indirect and insignificant. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analyses requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) classifies a “significant regulatory action,” requiring review by OMB, unless OMB waives such review as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance program numbers and titles for the programs affected by this document are 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.

List of Subjects in 38 CFR Part 60

• Health care
• Housing
• Reporting and recordkeeping requirements
• Travel
• Veterans

For the reasons stated in the preamble, VA is revising 38 CFR part 60 as follows:

PART 60—FISHER HOUSES AND OTHER TEMPORARY LODGING

Authority: 38 U.S.C. 501, 1708.